As many of you undoubtedly already know, the United States Court of Appeals for the Federal Circuit decided two weeks ago that software should be patentable if and only if it is tied to a machine. The case, In re Bilski, asked the Federal Circuit to determine if a purely mental business method was patentable, but the Court decided to write a decision that brought into question the future of software patents. There is no justification for the Federal Circuit doing this, and in fact most of the Court’s opinion is not actually the law moving forward because all the did was pontificate about a matter not necessary to reach a resolution, so if district court judges do what they are supposed to do legally they will simply ignore the Federal Circuit’s determination that software can only be patented if it is tied to a machine. Hopefully that is exactly what will happen, but I have my doubts.

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The below the fold article September 17 in the Wall Street Journal about Nathan Myhrvold, of Intellectual Ventures, should have displaced the above the fold headlines regarding the vague financial turmoil currently afflicting the U.S. and World Economy. Whereas one will pass, like kidney stones, with much watery eyed pain and gnashing of teeth, the other is far more insidious and potentially fatal to our collective future as a leading economy. Here’s why:

Just like in the story-line of Independence Day, where the alien death ships slowly but surely positioned themselves over each major city, with the eventual outcome well understood, so too is Intellectual Ventures (I.V.) slowly positioning itself as the patent overlord over many major industry segments. Just like in the movie, the eventual outcome is well understood. To wit: Complete usurpation of the U.S. Patent system. The outcome is a ,gigantic tax/toll collector controlling the pulse of innovation in the U.S. or, like the move, extermination of innovation.

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Let’s be perfectly honest, the US patent system has stopped rewarding innovation and has started rewarding those who have the finances and ability to game the system. That is a huge problem and one that needs to be addressed far more quickly than any other problem facing us. I have been saying for years that the manufacturing jobs are not coming back and that we need to focus on those areas where we can grow jobs and the economy, and that space is the innovation space. Innovation is at the core of growth because discoveries lead to inventions which lead to new technologies which lead to the creation of new industry which leads to the creation of high paying jobs. A rising tide lifts all boats and the tide that is going to lift the US economy is the innovation tide, so we need to start focusing on that and putting in place an environment that will allow innovation to thrive. This of course means a functioning patent system that recognizes worthwhile inventions, but it also requires that we put a stop to so-called patent trolls.

I know that over the last several years I have not been one to want to jump all up and down over the problems created by patent trolls, but I have to admit that things are not looking good for the patent industry these days thanks to the existence of patent trolls, and one particular super troll. What has transpired over the last few years is really quite sickening when you stop and think about it. The Patent Office has become so dysfunctional that getting an examiner to look at your application in a timely manner is impossible. The Supreme Court has made killed the doctrine of equivalents, made it extremely difficult to get a court to issue an order acknowledging that a patent is an exclusive right and has returned us to the days of “flash of creative genius” thanks to the KSR decision. The Congress has been able to accomplish absolutely nothing time after time because rather than take on meaningful reform special interest proposals are pushed that while favored by many are not favored by most. All the while a guy by the name of Nathan Myhrvold, a man with a Microsoft pedigree, has been amassing tens of thousands of patents. For crying out loud, what is going on!

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I stumbled across an interested report titled Comparing the Candidates’ Technology & Innovation Policies written by The Information Technology & Innovation Foundation, a non-partisan research and educational institute whose mission is to formulate and promote public policies to advance technological innovation and productivity internationally, in Washington, and in the states.  The report goes through issue by issue and compares the views of John McCain and Barack Obama on various matters that impact technology and innovation, from tax policy to Patent Office policy to communications policy and more.

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PRESS RELEASE: On Monday, September 15, 2008, the United States Patent & Trademark Office (USPTO) will begin enforcing new rules regarding who may represent others at before both the Patent Office and the Trademark Office. These rules strike a fatal blow to the invention submission industry, an industry that has preyed upon unwitting independent inventors for many years, costing inventors hundreds of millions of dollars each year. Both the USPTO and the United States Federal Trade Commission (FTC) have for years attempted to clean up the industry and save inventors from the clutches of these scams. To date, despite the laudable efforts of the USPTO and FTC, little or nothing has been able to prevent these invention scams from legally operating, albeit on the outer-most fringe of acceptability. On September 15, 2008, however, everything changes and the invention submission companies that prey upon unsuspecting inventors will no longer be able to operate.

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